No dumb questions at law school

No dumb questions in law school

How many times have you started a question with, ‘Sorry, this is probably a dumb question but …’? How many times have you stood in a seminar room and heard the same question, directed at you?  There are no dumb questions at law school. Law students are there to learn to be lawyers. They’re not pre-constructed experts. So why do law students apologise for asking questions? And what can we do to encourage confidence, especially in the first year of law school?

The school script

A little while ago, I came across an article on Medium by a high school history teacher, Jonathan Seyfried.  He talked about how the experience had stuck with him and why it might happen.  When I read it, I had just finished a post about ‘impostor syndrome’ in law school and being an ally, rather than an accomplice. It resonated deeply with me and gave another perspective on encouraging ‘impostors’. 

In his article, Seyfried talked about the ‘school script’. Even though we might think law school is a ‘clean slate’, first-year law students arrive with 12, 15 or even more years of learned experiences.  They have figured out how classrooms work and what teachers and other students value.   Albert Bandura, for example, argued that students assess which knowledge and behaviour is valuable.  They base their assessment on how the people they believe are authorities react to different things.  Depending on their previous experiences, that might be silence, obedience, and avoiding standing out (at least for the ‘wrong’ reasons). The type of things that Philip Jackson identified as part of the hidden social curriculum in classrooms.  

These things are deeply-embedded, survival-based scripts.  As Seyfried said:

I vastly underestimated how dormant school scripts continued to play out, no matter what I did or said. Those underlying scripts for school-in-general remain powerful and long-lasting.

The ‘harden up’ speech

I have seen law school teachers reinforce the ‘school script’ as the very first thing they do. Sometimes on the very day of law school. How many times have you seen the old ‘Look to your left … ‘ routine?  You know, the one where law students get told ‘you are going to fail’? I say ‘you’ not ‘some’ since most first-year law students will tell you that they think they’ll fall into the ‘fail’ basket.

There are probably lots of reasons some teachers still do it.  Its what they always do, or at least did, to law students in the past.  Its a reminder of the need to work hard.  Or it has got something to do with the adversarial nature of the law.  A sort of ‘Harden up, buttercup’ thing.

But there are lots of problems with that rationalisation.  Law school and legal education have come a long way since the quasi-Dickensian classrooms of last century. (Yes, last century. Most Australian law schools didn’t appear until the 20th century).  Unless you have been living under a rock, you’d know we understand a lot more about how people learn.  The lecture and recitation model of pre-(civil) war Harvard really didn’t foster learning – even when it was the model at Harvard. ‘We’ve always done it this way’ doesn’t necessarily mean that it should always be done that way. Especially when there is empirical evidence to say it can be done better.

It also ignores how hard many law students have already worked to get into law school. Many law schools demand that applicants demonstrate exceptional academic performance.  Sometimes that performance has put the student in 98th or 99th percentile at high school or college compared to other students.  Telling hard-working students that they are going to have to work hard seems like a waste of oxygen.

Will this be on the exam?

To make a connection that Seyfried made in his article, the ‘harden up’ speech also triggers a script that school drilled into students.  For some new law students, being told to work hard, get good grades and do well in final exams has become a mantra.  Something that teachers chant at them, and they learn to chant, over and over again. Learning isn’t about learning anymore. It’s about visible, rewarded performance. It also means that what students do learn is that academic success is about extrinsic rewards.

Telling students they need to harden up also ranks up there with telling people with a mental illness to ‘just get better’.  That is, entirely ineffective.  It’s also potentially feeding into what we already know about the concerning state of mental health in the legal profession and among law students.

More than 20 years ago, Martin Seligman and his colleagues explained why lawyers are unhappy. But even before that, we already knew law students were unhappy.  It turns out, focusing on extrinsic rewards, like working hard to get good marks, means students feel like we have no control over what they’re doing and can’t see a purpose to it. And ‘hardening up’ so that they can face deal with the quasi-trial-by-combat adversarial system promotes a demotivating ‘zero-sum’ game.

There are no dumb questions at law school

I’m not suggesting for a minute that law school isn’t hard. It is.  In an earlier post, I wrote about an approach to providing feedback that didn’t shy away from pointing out where a student could improve.  But by reinforcing experiences from school and telling law students to just suck it up makes it even harder to succeed.  As Catherine Christopher argued:

Law students are increasingly underprepared for the academic expectations of law school, through no fault of their own.

And one of the elements of that under-preparedness – one part of the school script and its focus on good marks – is that negative feedback means failure.

If law teachers are aware of those experiences, then we can actively deal with them. Law students need to be reminded that they aren’t dumb, they are new. Law students and lawyers got through a cycle of performance, reflection and improvement. Negative feedback is part of the cycle, not the end product. And improving performance improves confidence.

That process is even embedded in the Australian law school curriculum. The curriculum creates an expectation that law teachers break the school script and teach how to receive feedback and reflect. 

Part of that process is asking questions. Every question. Because if we, as law teachers, are going to effectively prepare law students for practice, there are no dumb questions at law school.

About Andrew Henderson

I am a law school teacher in Canberra and a PhD candidate at the Australian National University, researching the 'hidden' or informal curriculum of law school. I am passionate about developing engaging and authentic educational experiences for law students.

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